Peadon v. Sec'y, Case No. 8:10-cv-1409-T-17EAJ

• Court: U.S. District Court — Middle District of Florida
• Writing for the Court: ELIZABETH A. KOVACHEVICH
• Decision Date: 30 November 2010
• Docket Number: Case No. 8:10-cv-1409-T-17EAJ
• Citation: Peadon v. Sec'y, Dept. of Corr., Case No. 8:10-cv-1409-T-17EAJ (M.D. Fla. Nov 30, 2010)
• Parties: CARL PEADON, Petitioner, v. SECRETARY, DEPT. OF CORRECTIONS, Respondent.

CARL PEADON, Petitioner,

v.SECRETARY, DEPT. OF CORRECTIONS, Respondent.

Case No. 8:10-cv-1409-T-17EAJ

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

TAMPA DIVISION

FILED: November 30, 2010

ORDER

Before this Court is a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 filed by CARL PEADON (hereinafter referred to as "Peadon"), a Florida prisoner. The petition attacks Peadon's conviction for two counts of vehicular homicide rendered in the Twelfth Judicial Circuit in De Soto County, Florida, in state circuit case number 02 CF 568. A review of the record demonstrates that, for the reasons below, the petition must be denied.

PROCEDURAL HISTORY

On October 9, 2002, the State Attorney filed an Information charging Peadon with two counts of DUI manslaughter (Counts I and II), two counts of manslaughter (Counts III and IV), and two counts of vehicular homicide (Counts V and VI). (Exh 1: Vol. 1: R 1-4).¹ The case proceeded to a jury trial before the Honorable James S. Parker, Circuit Judge, on November 29, 2004. Peadon was represented by Assistant Public Defender Andrew Cummer. The jury found Peadon guilty of two lesser-included offenses of culpable negligence, and the two counts of vehicular homicide. (Exh 1: Vol. 1: R 173-174). The court dismissed the culpable negligence counts, and adjudicated Peadon guilty of two counts of vehicular homicide. On January 4, 2005, the court sentenced Peadon to eighteen years and six months in prison on each count, to run concurrently. (Exh 1: Vol. 1: R 183-189).

Given that Peadon has not challenged Respondent's statement of the procedural history of this case, a recitation of the procedural history of Peadon's criminal conviction is unnecessary. The issues are fully briefed and the case is ripe for decision. The record is fully developed and the claims of the petition raise issues of law, not issues of fact. See Breedlove v. Moore, 279 F.23 952, 959 (11th Cir. 2002). Because of the deference due the state court's findings of fact and conclusions of law, the state courts' determination of Peadon' claims largely governs review of those same claims. Consequently, in considering the reasonableness of the state courts' determinations, the review of Morton's claims includes a recitation of the pertinent state court analysis.

STANDARDS OF REVIEW

AEDPA STANDARD

Under 28 U.S.C. § 2254(d) and (e) as amended by the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), this court's review of the state court's factual findings must be highly deferential. Such findings are presumed to be correct unless rebutted by clear and convincing evidence. Similarly, the state courts' resolutions of issues of law-including constitutional issues-must be accepted unless they are found to be "contrary to" clearly established precedent of the Supreme Court of the United States or involve an "unreasonable application" of such precedent. Williams v. Taylor, 529 U.S. 362 (2000). Indeed, it is not enough that the federal courts believe that the state court was wrong; it must be demonstrated that the state court decision was "objectively unreasonable."]d\ Breedlove v. Moore, 279 F.3d 952 (11th Cir. 2002).

INEFFECTIVE ASSISTANCE OF COUNSEL STANDARD

To prevail on a claim of ineffective assistance of trial or appellate counsel, a Petitioner must meet the two-part test set forth in Strickland v. Washington, 466 U.S. 668 (1984). Strickland's two-part test requires a Petitioner to demonstrate that counsel's performance was deficient and "there was a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. However, if a claim fails to satisfy the prejudice component, the court need not make a ruling on the performance component.

DISCUSSION

GROUND ONE

Peadon alleges the evidence adduced at trial was constitutionally insufficient to support the convictions for vehicular homicide, because there was no evidence that Peadon was operating his vehicle in a reckless manner as required by state law. This ground must be denied for several reasons.

Failure to Exhaust Federal Constitutional Claim

To the extent Peadon is attempting to present a federal constitutional claim to this Court, such claim was not fairly presented to the state courts and is now barred. At trial, Peadon's attorney moved for a judgment of acquittal on the vehicular homicide charges based on lack of evidence to support a finding of reckless driving:

DEFENSE COUNSEL:...Specifically as to the vehicular homicide, Judge, I've given the Court--let the record reflect I've given both the Court and the State three manila folders: One is marked vehicular homicide, the other one is marked manslaughter, the other one is marked DUI manslaughter.

Specifically dealing with the vehicular homicide charges, which would specifically be Counts V and VI of the State's information, because the Court is well aware vehicular homicide requires reckless driving, willful and wanton reckless driving, I'd argue to the Court that there has been no evidence of reckless driving in this case, careless driving is insufficient, it requires for vehicular homicide more than a mere failure to use ordinary care.

I would cite State versus Delrio, 854 So. 2[d] 692, 2nd DCA case from 2003. In that particular case, the speed was 17 to 26 miles an hour in a 25-mile-an-hour zone. Mr. Delrio hit a woman pushing a baby in a stroller. In that particular case, the Court found that, as I just indicated, careless driving is insufficient as more than a mere failure to use ordinary care.

That's what we have in this situation, Judge. We have under what evidence they have presented is simply a failure to use ordinary care or even careless driving, which does not meet the criteria for vehicular homicide. I'll cite House versus State, 831 So.2[d] 1230, another 2nd DCA case from 2002. In that case there was insufficient evidence of vehicular homicide.

The facts in that case are that the Defendant was speeding after running a red light and grazing another vehicle. While he was speeding, he hit--he later hit a car and the driver died. He was going 60 in a 30-mile-an-hour zone in a residential area. The victim was only going 10 to 15 miles an hour. It was a hot, dry and clear day. The grazing of the first vehicle occurred about a half mile from the crash and less than a minute away from the crash, and there was no reckless driving found in that case.

I will cite to the Court W.E.B. -initials, capital W.E.B.-III, 533 So. 2[d] 323, 1st DCA case of 1989. Court found there was insufficient facts for vehicular homicide. The Defendant, who was a juvenile, drove after drinking. He exceeded the safe speed limit. He drove over the centerline and collided with an on-coming vehicle after driving off the shoulder of the road. Court found that was notvehicular homicide, absent evidence that his faculties were impaired or that he drove over the centerline because of impaired judgment, which I would argue to the Court is what we have in this situation. Overcorrecting from having driven off the shoulder of the road is simple negligence, according to the Court, and criminal liability does not attach when the Defendant is, by circumstances and conditions beyond his control and against his will, placed in the position and subjected to the conditions which resulted in the charge death.

In Miller, 636 So.2[d] 144, 1st DCA case from 1994, Court found there was insufficient evidence for reckless driving. Excessive speed alone is insufficient to constitute reckless driving. He had control of his vehicle.

In State versus Esposito, 642 So.2[d] 25, a 4th DCA case from 1994, Court there found insufficient evidence of vehicular homicide. In that particular case, the Defendant was driving a trolley. Court found from the evidence that at most he was negligent, not reckless. He was in control of the trolley. He wasn't speeding. At most, he was simply inattentive.

As to specific facts in our case, Judge, we have the traffic homicide investigator, who's testified that there was absolutely no signs of reckless driving in this case. And there has been no evidence presented by the State that, in fact, Mr. Peadon drove recklessly to constitute that element.

In R.C.G, 362 So.2[d] 166, a 2nd DCA case from 1978, the Court found no reckless driving, and therefore, no vehicular homicide. In that case there was a 16-year-old Defendant had been drinking, riding his motorcycle, he drove off the road 15 to 20 miles an hour over the speed limit. Two hours after the accident, he had a blood alcohol level of.03. There was no showing, according to the Court, of "reckless disregard of human life" or "entire want of care."

Respondent's Exhibit 1: Vol. 9: T 171-174.

On appeal, the sufficiency of the evidence to establish reckless driving was raised as Issue I. In Peadon's initial brief, he cited to state law regarding the proof needed to support a vehicular homicide conviction. At the close of his argument on this issue, Peadon's appellate counsel stated, in addition, that the conviction which was not supported by the evidence results in a violation of Peadon's federal constitutional rights under the Fifth and Fourteenth Amendments, amounting to a violation of Peadon's due process right. Respondent's Exhibit 2 at p. 9. In its answer brief, the State responded to Peadon's state law arguments only. Respondent's Exhibit 3 at pp. 16-24.

Peadon has not exhausted his federal constitutional claim because he did not fairly present a federal constitutional issue to the state courts at trial and on appeal. Before seeking federal habeas relief, a state prisoner to satisfy the exhaustion requirement, 28 U.S.C. § 2254(b)(1), must "fairly present" his claim in each appropriate state court to alert that court to the claim's federal nature. See Baldwin v. Reese, 541 U.S. 27, 124 S. Ct. 1347, 1350, 158 L. Ed. 2d 64 (2004). Pursuant to Duncan v. Henry, 513 U.S. 364, 365, 115 S. Ct. 887, 130 L. Ed. 2d 865 (...